FSM SUPREME COURT APPELLATE DIVISION
Cite as Setik v. Perman, 22 FSM R. 105 (App. 2018)
MARIANNE B. SETIK, individually and as
Administratrix of the ESTATE OF RAYMOND
SETIK, IRENE SETIK, individually and as
Administratrix of the ESTATE OF MANNY SETIK,
and personal Representative of the HEIRS OF
RAYMOND SETIK,
Appellants,
vs.
FELICIANO PERMAN, POHNPEI COURT OF LAND
TENURE, POHNPEI STATE GOVERNMENT, and the
FSM DEVELOPMENT BANK,
Appellees.
APPEAL CASE NO. P1-2017
(Civil Action No. 2016-015)
OPINION AND ORDER OF DISMISSAL
Argued: August 27, 2018
Submitted: September 14, 2018
Decided: November 5, 2018
BEFORE:
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Mayceleen J.D. Anson, Specially Assigned Justice, FSM Supreme Court**
*Chief Justice, Yap State Court, Colonia, Yap
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
APPEARANCES:
For the Appellants:
Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941
For the Appellees:
Nora E. Sigrah, Esq.
(Perman & Bank)
P.O. Box M
Kolonia, Pohnpei FM 96941
* * * *
Under Appellate Rule 27(a), any party may file an opposition to a motion within 7 days after the
motion's service, and, if the motion is served by mail, six days must be added to this prescribed period. Setik v. Perman, 22 FSM R. 105, 111 n.1 (App. 2018).
An appellate court may, despite the non-movants' neglectful tardiness, grant an oral request for a chance to respond since the court may extend the time for responding to any motion. Setik v. Perman, 22 FSM R. 105, 111 n.1 (App. 2018).
A judge's legal rulings, even if adverse, made in the course of judicial proceedings, whether in the same case, or a related case, (or even an unrelated case) do not disqualify that judge. Setik v. Perman, 22 FSM R. 105, 111 (App. 2018).
An appellate panel's legal rulings in the two earlier appeals, even though unfavorable, do not, and cannot, disqualify the panel members from sitting on a later, related appeal. Setik v. Perman, 22 FSM R. 105, 111 (App. 2018).
Since court rulings, by their nature, are almost always unfavorable to one or more parties, for a judge to be disqualified for no reason other than the judge had once made an unfavorable ruling against a party, would quickly lead to all judges being disqualified from most court cases. Setik v. Perman, 22 FSM R. 105, 111 n.2 (App. 2018).
A party's delay cannot, by itself, create a ground for that party to move for judicial disqualification. Setik v. Perman, 22 FSM R. 105, 111 n.3 (App. 2018).
Merely because a justice presided over a different case, involving the same parties or related issues, does not, by itself, create an appearance of partiality that would necessitate the justice's recusal under 4 F.S.M.C. 124(1). Setik v. Perman, 22 FSM R. 105, 111 (App. 2018).
A statement of issues that the trial court order "was erroneous, contrary to law, and was not based on substantial evidence," and that the trial court violated the appellants' "constitutional and state law rights and other common law rights," is a generalized and scattershot framing of issues that is unhelpful to an appellate court and to all the parties, especially the appellants, since it is a missed opportunity for effective appellate advocacy. Setik v. Perman, 22 FSM R. 105, 113 (App. 2018).
When it comes to the statement of issues, too many brief writers fall into one of two errors: 1) they reproduce the headings from the body of the brief; or 2) they state the issue in terms so general as to be useless. Both errors are annoying and both represent missed opportunities for effective advocacy. Setik v. Perman, 22 FSM R. 105, 113 (App. 2018).
One should assume that Rule 28(a)(2), which requires a statement of issues in the brief, does not ask an advocate to do an idle act. The statement of issues is there for a purpose. Setik v. Perman, 22 FSM R. 105, 113 (App. 2018).
Generalized statements of issue give the reader no guide as to what follows. Setik v. Perman, 22 FSM R. 105, 113 (App. 2018).
When the appellants' statement of issues is so generalized as to be no statement at all, it requires the appellate court to sift through the brief to ascertain what issues they might actually be arguing. Setik v. Perman, 22 FSM R. 105, 113 (App. 2018).
A non-party has sufficient interest in a case's outcome that it can intervene as of right when, if the plaintiffs prevailed, the non-party would face substantial financial liability to another defendant and when it has larger interests that would be affected and that extend far beyond any liability to any defendant, so that no named defendant was in a position to adequately defend its interests. Setik v. Perman, 22 FSM R. 105, 114 (App. 2018).
There is no such status as a "mere intervenor." When a non-party is granted the right to intervene in a suit, it becomes a party, that is, the former non-party intervenes as, and becomes, either a plaintiff or a defendant. Setik v. Perman, 22 FSM R. 105, 114 (App. 2018).
When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party. It has equal standing with the original parties. Setik v. Perman, 22 FSM R. 105, 114 (App. 2018).
Original parties to a lawsuit are either plaintiffs or defendants. Setik v. Perman, 22 FSM R. 105, 114 (App. 2018).
When a non-party has been permitted to intervene as a party-defendant, it has, as an intervenor, subjected itself to the plaintiff's claims against the defendants, notwithstanding the plaintiff's failure to amend the complaint to include reference to the intervenor. Setik v. Perman, 22 FSM R. 105, 114 (App. 2018).
Under FSM General Court Order 1992-2, § II(D), the filing of a petition for removal to the FSM Supreme Court itself effects removal so long as all the specified requirements are met. Thus, a party accomplishes the removal automatically without any FSM Supreme Court action. Setik v. Perman, 22 FSM R. 105, 115 (App. 2018).
An opposition to a removal petition must be considered a motion to remand because any opposition to a removal petition, regardless of how it is styled, is actually a motion to remand the case to the state court on the ground that it was improvidently removed. Setik v. Perman, 22 FSM R. 105, 115 (App. 2018).
A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time it was
removed, or the party removing the case has waived its right to proceed in the FSM Supreme Court. Setik v. Perman, 22 FSM R. 105, 115 (App. 2018).
The FSM Supreme Court has jurisdiction over a case, regardless of the nature of the case's causes of action, when the FSM Development Bank is a party. Setik v. Perman, 22 FSM R. 105, 115 (App. 2018).
A party's actions in the state court, such as conducting active litigation or waiting more than sixty days, may constitute a waiver of the right to remove that case to the FSM Supreme Court. Setik v. Perman, 22 FSM R. 105, 116 (App. 2018).
When a party's only action in the state court was to file a motion seeking more time to answer or otherwise defend, that filing does not constitute the party's waiver, through active state court litigation, of the right to effect the case's removal. Setik v. Perman, 22 FSM R. 105, 116 (App. 2018).
Although the court must first look to FSM sources of law, when it has not previously construed the effect of an FSM General Court Order 1992-2 provision that is identical or similar to a U.S. counterpart, the court may consult U.S. sources for guidance in interpreting that provision. Setik v. Perman, 22 FSM R. 105, 116 n.10 (App. 2018).
The word "may" in FSM General Court Order 1992-2, § I, grants the discretion to remove to any party in a state court action, not to the FSM Supreme Court. Setik v. Perman, 22 FSM R. 105, 116 (App. 2018).
A contention that, instead of ruling on several motions in one combined order, the trial court should have issued its rulings in separate orders, or on separate days, or after separate hearings, is wholly frivolous. Setik v. Perman, 22 FSM R. 105, 116 (App. 2018).
In a removed case, the case arrives in the FSM Supreme Court in the same posture it was when it left the state court – the court treats everything that occurred in the state court before removal as if it had occurred in the FSM Supreme Court. Setik v. Perman, 22 FSM R. 105, 116 (App. 2018).
In a removed case, the FSM Supreme Court properly treats the complaint that the plaintiffs filed in the state court as if it had been filed in the FSM Supreme Court. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
Defendants do not have claims. They have defenses. (A defendant may have counterclaims in addition to defenses.) Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
Every defendant has the option of raising certain defenses (if it has them) by either a Rule 12(b) motion to dismiss or by including those defenses in an answer. Setik v. Perman, 22 FSM R. 105, 117
(App. 2018).
An intervenor is entitled to litigate fully on the merits once intervention has been granted. The intervenor may move to dismiss the proceeding and may challenge the court's subject-matter jurisdiction. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
An intervenor, who has become a party-defendant, may move to dismiss the proceeding. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
Civil Procedure Rule 12(d) requires that Rule 12(b)(6) motions be decided before trial. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
When, on a Rule 12(b)(6) motion to dismiss, the trial court considers matter outside the pleadings and does not exclude that matter, the trial court should consider the Rule 12(b)(6) motion to dismiss to be converted to a Rule 56 motion for summary judgment. Setik v. Perman, 22 FSM R. 105, 117 n.11 (App. 2018).
A court may take judicial notice of its own files in related cases. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
When the parties have had the opportunity to be heard by filing written submissions, it is within the court's discretion to decide motions without an oral hearing. Setik v. Perman, 22 FSM R. 105, 117-18 (App. 2018).
As a general proposition, the "hearing" contemplated in Rule 12 or Rule 56 does not necessarily include oral argument. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
Rule 12(b)(6) motions (even if converted to Rule 56 summary judgment motions) are, even if argued orally, always decided without an evidentiary hearing because Rule 12(b)(6) motions to dismiss (or Rule 56 summary judgment motions) raise only issues of law, not of fact. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
The appellate court will disregard a contention that the appellants believe that the same FSM Supreme Court law clerk, who worked on their other trial court cases, worked on this case in the trial court when they do not explain how this would entitle them to any relief and when they do not point to any reason that disqualified this particular law clerk from assisting the FSM Supreme Court trial judge in this case. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
An appeal will be dismissed if events after its filing make the issues presented moot because the FSM Supreme Court lacks jurisdiction to consider moot cases. Setik v. Perman, 21 FSM R. 105, 108 (App. 2018).
A moot case does not present a justiciable dispute. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
An appellate court may receive proof of, or take notice of, facts outside the record to determine if an appeal has become moot. In most cases, it would be difficult to determine mootness any other way. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
Among the circumstances that create mootness are rulings in other adjudicatory proceedings, including rulings by the same court in the same or companion proceedings. Generally, an intervening judicial decision entered in a collateral proceeding will render moot a case or an issue arising therein when the decision resolved the controversy or the issue. Setik v. Perman, 22 FSM R. 105, 118 (App. 2018).
Once the state court granted an intervention as a party-defendant, that party had the same capacity as any party to quickly remove the case to the FSM Supreme Court, if the FSM court had jurisdiction, and to move to dismiss the case for the failure to state a claim, if it thought that was a viable defense. Setik v. Perman, 22 FSM R. 105, 119 (App. 2018).
The FSM Supreme Court would look upon a true negligence suit against the Pohnpei Court of Land Tenure with great disfavor because, when a defendant is found negligent, the remedy is money damages, and because the Pohnpei Court of Land Tenure is a court, and, as a court, it is immune from a suit for money damages for its judicial acts. Setik v. Perman, 22 FSM R. 105, 119 n.12 (App. 2018).
A state court has no jurisdiction over real estate in the jurisdiction of a different sovereign state. Setik v. Perman, 22 FSM R. 105, 119 (App. 2018).
All the appellants' substantive claims are moot and will be dismissed when those claims no longer present a justiciable dispute because previous appellate decisions have resolved them in their entirety. Setik v. Perman, 22 FSM R. 105, 120 (App. 2018).
Although the usual result when an appeal becomes moot is for the appellate court to vacate the judgment below and order that the case be dismissed, when the case below has already been dismissed, no purpose would be served by vacating that dismissal and then dismissing it again. Setik v. Perman, 22 FSM R. 105, 120 (App. 2018).
* * * *
LARRY WENTWORTH, Associate Justice:
On August 27, 2018, we heard argument on the parties' motions and on the appeal's merits.
The appellants ("the Setiks") orally moved to disqualify the appellate panel, and an appellee, the FSM Development Bank, moved, in a July 23, 2018 filing, to dismiss this appeal as moot. We gave the Setiks two weeks to file1 a response to that motion and the bank one week more to file a reply.
The Setiks filed their opposition on September 10, 2018, and the bank filed its reply on September 14, 2018. We then considered this matter submitted to us for our decision.
We affirm the trial court's decision in part and we grant the motion to dismiss this appeal. Our reasoning follows.
We first address the Setiks' oral motion to disqualify the entire appellate panel. The Setiks contended that all three of us should all be disqualified from this appeal because we were all on the appellate panel that decided two related appeal cases, Setik v. FSM Dev. Bank, 21 FSM R. 505, reh'g denied, 21 FSM R. 604 (App. 2018) and Setik v. Mendiola, 21 FSM R. 537, reh'g denied, 21 FSM R. 624 (App. 2018), and those decisions were mostly unfavorable to the Setiks.
A judge's legal rulings, even if adverse, made in the course of judicial proceedings, whether in the same case, or a related case, (or even an unrelated case) do not disqualify that judge. See FSM v. Wainit,, 13 FSM R. 293, 295 (Chk. 2005); see also Halbert v. Manmaw,, 20 FSM R. 245, 250 (App. 2015) (unfavorable rulings in a case are not an extrajudicial source, and are not a ground to reasonably question the judge's impartiality under 4 F.S.M.C. 124(1)); FSM v. Wainit,, 11 FSM R. 424, 431 (Chk. 2003); FSM v. Ting Hong Oceanic Enterprises, 7 FSM R. 644, 649 (Pon. 1996); FSM v. Skilling,, 1 FSM R. 464, 473, 484 (Kos. 1984).
Thus, our legal rulings in the two earlier, related appeals, even though unfavorable,2 do not, and cannot, disqualify us from sitting on this appeal.3 "Merely because a justice presided over a different case, involving the same parties and/or related issues, does not ipso facto, reflect an appearance of partiality, which would necessitate recusal, under 4 F.S.M.C. 124(1)." Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017).4
We therefore denied from the bench this motion to disqualify the panel members.
Most of the background facts are adequately set forth in Setik v. FSM Dev. Bank, 21 FSM R. 505, 512-13 (App. 2018); Setik v. Mendiola, 21 FSM R. 537, 546-49 (App. 2018) and need not be repeated here. We do note that those appeal cases all involved the bank's foreclosure of its mortgage on what is commonly known on Pohnpei as the C-Star property and the Setiks' various, unsuccessful legal challenges to that foreclosure (and the resulting foreclosure sale) and the judgments and orders the foreclosure sale was based upon.
The present case was filed on May 5, 2016, in the Pohnpei Supreme Court trial division and docketed as PCA No. 129-16. The Setik plaintiffs had various claims to ownership and control of the C-Star property based on the late Raymond Setik's previous registered ownership of it. They filed a complaint against Feliciano Perman, the Pohnpei Court of Land Tenure, and the Pohnpei state government, alleging that Perman, the C-Star property foreclosure sale buyer, was not the C-Star property's true owner and that they had meritorious claims to that property recognizable through their causes of action for 1) conversion of assets held by the Raymond Setik estate; 2) violation of due process by the Pohnpei Court of Land Tenure's issuance of a certificate of title for the C-Star property to Perman; 3) fraud and misrepresentation in Perman's application to the Court of Land Tenure for the C-Star certificate of title; and 4) negligence in the Court of Land Tenure's issuance of the certificate of title to Perman.
On May 23, 2016, the FSM Development Bank filed, in PCA No. 129-16, its motion, with supporting affidavits and exhibits, to intervene as a defendant. The Setiks filed an opposition to the bank's intervention, and the bank filed a reply. On June 27, 2016, the Pohnpei Supreme Court granted the bank's motion and allowed the "FSM Development Bank to intervene in th[e] action as a defendant." Setik v. Perman, PCA No. 129-16 Order Granting FSM Development Bank's Motion to Intervene (Pon. S. Ct. Tr. June 27, 2016).
On July 13, 2016, the bank filed, in the FSM Supreme Court trial division, its verified petition for removal of the case to that court.5 It was docketed there as Civil Action No. 2016-015. Then, on July 19, 2016, the bank filed a motion to dismiss the Setiks' complaint because that complaint failed to state a claim for which the court could grant relief.
On September 5, 2016, the Setiks filed, in the FSM Supreme Court,6 their opposition to the removal to the FSM Supreme Court and to the bank's motion to dismiss. On December 15, 2016, the FSM Supreme Court special trial judge ruled that the removal to the FSM Supreme Court was proper, Setik v. Perman, 21 FSM R. 31, 35-37 (Pon. 2016); that the complaint should be dismissed since it failed to state a claim, id. at 37-39; that the case also did not qualify as an independent action for relief
from the FSM Supreme Court judgments it purported to collaterally attack, id. at 40; and that it was barred by the res judicata doctrine, id. at 40-41.
The Setiks timely appealed.
The Setiks, in their statement of issues on appeal, frame only two issues. They contend that the December 15, 2016 court order "was erroneous, contrary to law, and was not based on substantial evidence," and that that court order violated their "constitutional and state law rights and other common law rights." Appellants' Br. at 1-2. This generalized and scattershot framing of issues is unhelpful to an appellate court and to all the parties, especially the appellants, since it is generally a missed opportunity for effective appellate advocacy.7
When it comes to the statement of issues, "[f]ar too many brief writers fall into one of two errors: (1) they reproduce the headings from the body of the brief; or (2) they state the issue in terms so general as to be useless. Both errors are annoying . . . and both represent missed opportunities for effective advocacy." ERIC J. MAGNUSON & DAVID F. HERR, FEDERAL APPEALS § 9:10, at 501 (2016 ed.) "Rule 28[(a)(2) requiring a statement of issues in the brief] does not, one should assume, ask an advocate to do an idle act. The statement of issues is there for a purpose." Id. "Generalized issue statements give the reader no guide as to what follows." Id.
The Setiks' statement of issues is so generalized as to be no statement at all. We therefore had to sift through the brief to ascertain what issues they might actually be arguing. From our review of the Setiks' opening brief, we can glean that the Setiks seek appellate review of the following actions that they contend were legal errors: 1) the Pohnpei Supreme Court's grant of the bank's motion to intervene in PCA 129-16; 2) the bank's removal of PCA 129-16 to the FSM Supreme Court; 3) the FSM Supreme Court's exercise of jurisdiction over the removed case instead of remanding it; 4) the FSM Supreme Court's rejection of their opposition to removal from the Pohnpei Supreme Court; 5) the FSM Supreme Court treating the complaint in PCA No. 129-16 as if it were a complaint filed in the FSM Supreme Court; 6) the FSM Supreme Court treating the bank as a defendant instead of as a claimant required to present its claims to the court for adjudication; 7) the bank's filing in the FSM Supreme Court, and the FSM Supreme Court's grant of, a motion to dismiss the Setiks' complaint; 8) the December 15, 2016 order's issuance without an oral or evidentiary hearing; and 9) although a different temporary justice handled this case in the FSM Supreme Court trial division, the same FSM law clerk seemed to have worked on all of the Setiks' cases.
On July 23, 2018, the bank filed its motion to dismiss this appeal as moot.8 The bank contends that the Setiks' claims in their complaint are all moot because, when we decided the related appeals, we decided all the issues the Setiks' complaint raised.
The Setiks contend that there are numerous issues in this case that were not addressed or
decided in the other Setik appeals. With regard to the procedural and jurisdictional issues that are specific to this case, that is certainly true. Therefore, we will address those issues before considering the bank's motion to dismiss this appeal as moot.
The Setiks raise the following issues in this appeal that are specific to this case, that were not present in the other Setik appeals, and that do not involve resolving the merits of the Setiks' claims in their complaint: (a) the Pohnpei Supreme Court's grant of the bank's motion to intervene in PCA 129-16; (b) the bank's removal of PCA 129-16 to the FSM Supreme Court; (c) the FSM Supreme Court's exercise of jurisdiction over the removed case; (d) the FSM Supreme Court's rejection of the Setiks' opposition to removal and denial of their request for remand to the Pohnpei Supreme Court; (e) the FSM Supreme Court's treatment of the PCA No. 129-16 complaint as if it were a complaint filed in the FSM Supreme Court; (f) the FSM Supreme Court's treatment of the bank as a defendant; (h) the bank's right to file in the FSM Supreme Court, a motion to dismiss the Setiks' complaint when the bank was only an intervenor; (h) the issuance of the December 15, 2016 order without an oral hearing; and (i) the use on this case of the same FSM Supreme Court law clerk that worked on the other Setik cases.
A. Intervention and an Intervenor's Status
1. Intervention
The Setiks seem to contend that the Pohnpei Supreme Court should not have permitted the bank to intervene, but this argument is vague. Although the Setiks deliberately chose not to name the bank as a defendant, the bank nevertheless had sufficient interest in that case's outcome that it could intervene as of right. If the Setiks prevailed, the bank would face substantial financial liability to another defendant – Perman, and it had larger interests that would be affected (its judgments against the Setiks for which the mortgage foreclosure was partial satisfaction) that extended far beyond any liability to Perman, so that no named defendant was in a position to adequately defend the bank's interests. Permitting the bank to intervene was therefore proper.
2. FSM Development Bank's Status as an Intervenor
The Setiks question whether the FSM Supreme Court was right to have treated the bank as a defendant when, in their view, it was "a mere intervenor" without a party's rights or powers or without the rights and powers of the defendants named in the Setiks' complaint. There is no such status as a "mere intervenor." When a non-party is granted the right to intervene in a suit, it becomes a party, that is, the former non-party intervenes as, and becomes, either a plaintiff or a defendant. "When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party." Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985). An "intervenor is treated as if the intervenor were an original party and has equal standing with the original parties." 7C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1920, at 609 (3d ed. 2007). Original parties to a lawsuit are either plaintiffs or defendants.
If it were not clear that the bank, as a party whose interests were directly adverse to the plaintiff Setiks' interests, was a defendant, the state court order granting the bank's motion to intervene should have dispelled any doubt. It specifically "allow[ed the] FSM Development Bank to intervene in this action as a defendant." Order Granting FSM Dev. Bank's Mot. to Intervene, PCA No. 129-16 (Pon. S. Ct. Tr. June 27, 2016). The case thus arrived in the FSM Supreme Court with the bank as a party-defendant, in the same position as any other party-defendant. And thus, the bank "[a]s an intervenor . . . subjected itself to the plaintiff's claims against the defendant[s], notwithstanding plaintiff's failure to amend [the] complaint to include reference to [the bank]." Schneider, 767 F.2d at 1017.
B. Removal, FSM Supreme Court Jurisdiction, and Denial of Remand
The Setiks contend that the petition for removal was erroneous, that the case should have been remanded, and that the bank, as an intervenor, did not have the ability to remove the case or to move for its dismissal.
1. Removal of PCA No. 129-16 to the FSM Supreme Court
Under FSM General Court Order 1992-2, Section II(D), the filing of a petition for removal to the FSM Supreme Court itself effects removal so long as all the specified requirements are met. Shrew v. Sigrah, 13 FSM R. 30, 32 (Kos. 2004). A party accomplishes the removal automatically without any FSM Supreme Court action. Saimon v. Nena, 19 FSM R. 608, 610 (Kos. 2014). The Setiks do not contend that the bank failed to comply with the required removal procedures in General Court Order 1992-2, § II. They contend that the removal was improper because the FSM Supreme Court lacked jurisdiction and should have remanded the case and because the bank was an intervenor, not a party, and so could not remove it.
The Setiks assert that their opposition to removal should have prevailed and that the case should not have been removed. But the bank, as a party, had already accomplished the removal on its own. The Setiks' opposition to the removal petition had to be considered a motion to remand "because an[y] opposition to a removal petition, regardless of how it is styled, is actually a motion to remand the case to state court on the ground that it was improvidently removed."9 Etscheit v. McVey, 13 FSM R. 477, 479 (Pon. 2005) (citing Gilmete v. Adams, 11 FSM R. 105, 107 & n.1 (Pon. 2002); Porwek v. American Int'l Co. Micronesia, 8 FSM R. 436, 438 (Chk. 1998)); see also Saimon v. Nena, 19 FSM R. 608, 610 (Kos. 2014).
A case is improvidently removed when it has been removed to the FSM Supreme Court and either the FSM Supreme Court did not have subject-matter jurisdiction over the case at the time of its removal, or the party removing the case had waived its right to proceed in the FSM Supreme Court.
Mailo v. Chuuk, 12 FSM R. 597, 600 (Chk. 2004) (citing Enlet v. Bruton, 10 FSM R. 36, 39 (Chk. 2001)); see also Etscheit, 13 FSM R. at 479. We therefore consider next whether the FSM Supreme Court trial division had subject-matter jurisdiction.
2. FSM Supreme Court's Subject-Matter Jurisdiction
The Setiks contend that the FSM Supreme Court lacked subject-matter jurisdiction because they pled only state law causes of action. The bank counters that the FSM Supreme Court had jurisdiction because there was diversity of citizenship between the parties, because the Setiks' causes of action all had the purpose (as pled) to invalidate previous adverse FSM Supreme Court judgments and orders and only the FSM Supreme Court could invalidate its own orders, and because the bank was a party.
It is well-settled law that the FSM Supreme Court has jurisdiction over a case, regardless of the nature of the case's causes of action, when the FSM Development Bank is a party. Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 518 (App. 2016); FSM Dev. Bank v. Estate of Edmond, 19 FSM R. 425, 432-
33, 435-36 (App. 2014); Helgenberger v. FSM Dev. Bank, 18 FSM R. 498, 500 (App. 2013). That is more than sufficient ground to determine that CA No. 129-16 was removable once the bank had intervened.
3. Denial of Remand
A party's actions in the state court, such as conducting active litigation or waiting more than sixty days, may constitute a waiver of the right to remove that state court case to the FSM Supreme Court. See FSM GCO 1992-2, §§ II(B), III(C). The bank's only action in the state court once it became a party, was to file a motion seeking more time to answer or otherwise defend. Filing a motion in state court seeking an enlargement of time in which to answer or otherwise defend does not constitute a party's waiver of the right to effect the case's removal. Malave v. Sun Life Assurance Co. of Canada, 392 F. Supp. 51, 52 (D.P.R. 1975).10 The bank thus did not waive its right to remove the case through active state court litigation, and it removed the case well within the sixty-day time limit.
The Setiks, relying on the discretionary word "may" in FSM General Court Order 1992-2, § I, contend that the FSM Supreme Court could, and should, have exercised discretion to deny the removal petition and remand the matter. Section I provides, "Any action brought in a state court of which the trial division of the FSM Supreme Court has jurisdiction may be removed by any party to the trial division of the FSM Supreme Court." The word "may" indicates discretion. Pohnpei v. AHPW, Inc., 14 FSM R. 1, 20-21 (App. 2006) (the word "may" is indicative of discretion, but the context in which the word appears is the controlling factor). But it grants the discretion to remove to "any party" in a state court action, not to the court – it is the parties, not the court, that have the discretion to remove cases. The parties to Pohnpei Supreme Court CA No. 129-16 had the discretion to remove the case to the FSM Supreme Court, and the bank exercised that discretion.
The Setiks also contend that the FSM trial court acted improperly because it should have heard and ruled on their opposition to removal before it addressed the bank's motion to dismiss. This is puzzling, because the trial court did just that. It ruled on the Setiks' motion to remand ("opposition to removal") first. Setik v. Perman, 21 FSM R. 31, 35-37 (Pon. 2016). It then proceeded to the merits of the bank's motion to dismiss. Id. at 37-41. If the Setiks' contention is that the trial court should have issued its rulings in separate orders, or on separate days, or after separate hearings, that argument is wholly frivolous.
C. Posture on Removal
The Setiks assert that the complaint that they filed in the Pohnpei Supreme Court in PCA No. 129-16 should not have been treated as if it were a complaint filed in FSM Supreme Court. It, however, should be clear that it must.
In a removed case, the case arrives in the FSM Supreme Court in the same posture it was when it left the state court – the court treats everything that occurred in the state court before removal as if it had occurred in the FSM Supreme Court. FSM GCO 1992-2, § VII (all state court orders and proceedings before the case's removal remain in effect until modified by the FSM Supreme Court); see Porwek v. American Int'l Co. Micronesia, 8 FSM R. 463, 465-66 (Chk. 1998) (state court actions
before removal remain in effect when the case is removed until modified by the FSM Supreme Court trial division); Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM R. 464, 466 (Pon. 1994) (all prior state court orders remain in effect); cf. Butner v. Neustader, 324 F.2d 783, 785 (9th Cir. 1963) ("The federal court takes the case as it finds it on removal and treats everything that occurred in the state court as if it had taken place in federal court."); Savell v. Southern Ry., 93 F.2d 377, 379 (5th Cir. 1937) ("When a case is removed the federal court takes it as though everything done in the state court had in fact been done in the federal court."). Thus, the FSM Supreme Court properly treated the complaint that the Setiks filed in the Pohnpei Supreme Court as if it had been filed in the FSM Supreme Court.
D. FSM Development Bank's Ability to File a Motion to Dismiss
The Setiks further contend that the bank should not have been able to move to dismiss their case. They assert that instead the bank should have been required to assert "its claims" against them.
This is a frivolous argument. The bank was a party-defendant. Defendants do not have claims. They have defenses. (A defendant may have counterclaims in addition to defenses, but none were pled in this case.) Since the bank was a defendant, it was required to respond to the Setiks' complaint. It had, as every defendant has, the option of raising certain defenses (if it has them) by either a Rule 12(b) motion to dismiss or by including those defenses in an answer. Fuji Enterprises v. Jacob, 21 FSM R. 355, 364 (App. 2017); Lonno v. Heirs of Palik, 21 FSM R. 103, 107 (App. 2016); Damarlane v. U Mun. Gov't, 18 FSM R. 96, 99 (Pon. 2011).
The bank chose to raise its Rule 12(b)(6) defenses by motion. There is nothing irregular or improper about that. An "intervenor is entitled to litigate fully on the merits once intervention has been granted. The intervenor may move to dismiss the proceeding and may challenge the subject-matter jurisdiction of the court." 7C WRIGHT, MILLER & KANE, supra, § 1920, at 611-12. The intervenor in this case, the bank, moved to dismiss the proceeding. As a party-defendant, it had the right to do so. Civil Procedure Rule 12(d) requires that Rule 12(b)(6) motions11 be decided before trial. The trial court therefore decided the motion.
E. Reference to Other Cases and Lack of Oral Hearing
The Setiks also complain that the trial court should not have considered the other cases that involved them and the C-Star property when it made its decision. We can find no error here. A court may take judicial notice of its own files in related cases. Onanu Municipality v. Elimo, 20 FSM R. 535, 541 (Chk. 2016); Chuuk Health Care Plan v. Waite, 20 FSM R. 282, 284 n.1 (Chk. 2016); Sorech v. FSM Dev. Bank, 18 FSM R. 151, 154 n.1 (Pon. 2012); Arthur v. Pohnpei, 16 FSM R. 581, 588 n.3, 593 (Pon. 2009); Rudolph v. Louis Family, Inc., 13 FSM R. 118, 125 n.2 (Chk. 2005).
The Setiks also question the propriety of the trial court deciding, without an oral or an evidentiary hearing, not only on their opposition to removal but also on the bank's motion to dismiss. We can find no error there. When the parties have had the opportunity to be heard by filing written submissions,
it is within the court's discretion to decide motions without an oral hearing. See Palsis v. Tafunsak Mun. Gov't, 16 FSM R. 116, 127 (App. 2008); Heirs of George v. Heirs of Dizon, 16 FSM R. 100, 111 (App. 2008); Livaie v. Kosrae Sea Ventures, Inc., 10 FSM R. 206, 208 (Kos. 2001) (not the court's practice generally to hear oral argument on pretrial motions). "As a general proposition, courts have come to the conclusion that the 'hearing' contemplated in Rule 12 or Rule 56 does not necessarily include oral argument." Beth Bates' Annotation, Necessity of Oral Argument on Motion for Summary Judgment or Judgment on Pleadings in Federal Court, 105 A.L.R. FED. 755, § 3, at 761 (1991). The parties are heard on the papers.
Rule 12(b)(6) motions (even if converted to Rule 56 summary judgment motions) are, even if argued orally, always decided without an evidentiary hearing because Rule 12(b)(6) motions to dismiss (or Rule 56 summary judgment motions) raise only issues of law, not of fact. See, e.g., Wilkins v. Rogers, 581 F.2d 399, 405 (4th Cir. 1978) (lack of oral argument on motion to dismiss not denial of due process); Skolnick v. Martin, 317 F.2d 855, 857 (7th Cir. 1963) (no abuse of discretion in not permitting oral argument on motion to dismiss); Butterman v. Walston & Co., 50 F.R.D. 189, 190 (E.D. Wisc. 1970) (oral argument on motions to dismiss or for summary judgment not always helpful or desirable). The trial court did not err by forgoing oral argument.
G. Law Clerk Assignments
The Setiks also assert that it is their belief that the same FSM Supreme Court law clerk, who worked on their other cases, worked on this case. They do not explain how this would entitle them to any relief. Nor do they point to any reason that disqualified this particular law clerk from assisting the FSM Supreme Court trial judge in this case. We therefore disregard this contention.
A. Mootness Principles
We now turn to consideration of the bank's motion to dismiss the appeal on mootness grounds. The bank contends that we must dismiss this appeal because our earlier decisions in Setik v. FSM Dev. Bank, 21 FSM R. 505, reh'g denied, 21 FSM R. 604 (App. 2018), and in Setik v. Mendiola, 21 FSM R. 537, reh'g denied, 21 FSM R. 624 (App. 2018), make this appeal moot. We will dismiss an appeal if events subsequent to an appeal's filing make the issues presented moot because the FSM Supreme Court lacks jurisdiction to consider moot cases. Wainit v. FSM, 14 FSM R. 476, 478 (App. 2006). A moot case does not present a justiciable dispute. Id.
We may receive proof of, or take notice of, facts outside the record to determine if an appeal has become moot. Helgenberger v. Bank of Hawaii, 19 FSM R. 139, 143-44 (App. 2013); Reddy v. Kosrae, 11 FSM R. 595, 596 (App. 2003); Nikichiw v. Marsolo, 15 FSM R. 177, 178 (Chk. S. Ct. App. 2007); Wainit v. Weno, 10 FSM R. 601, 610 (Chk. S. Ct. App. 2002). In most cases, it would be difficult to determine mootness any other way.
"Among the circumstances that create mootness are rulings in other adjudicatory proceedings, including rulings by the same court in the same or companion proceedings . . . ." 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.10, at 565 (3d ed. 2008) (footnote omitted). Generally, "[a]n intervening judicial decision entered in a collateral proceeding [will] render moot a case or an issue arising therein where the decision resolved the controversy or the issue." Ernest H. Shopler, Annotation, What Circumstances Render Civil Case, or Issues Arising Therein, Moot So as to Preclude Supreme Court's Consideration of Their Merits, 44 L. Ed. 2d 745, § 8[a], at 760 (1976); see also Aikens v. California, 406 U.S. 813, 814, 92 S. Ct. 1931,
1932, 32 L. Ed. 2d 511, 511-12 (1972); Lomenzo v. WMCA, Inc., 384 U.S. 887, 887, 86 S. Ct. 1907, 1907, 16 L. Ed. 2d 991, 991-92 (1966); Alton v. Alton, 347 U.S. 610, 611, 74 S. Ct. 736-37, 98 L. Ed. 987, 988 (1954).
B. Remaining Issues
The bank contends that our two earlier appellate decisions in companion proceedings are intervening judicial decisions entered in collateral proceedings that have already resolved the issues and the dispute and have therefore rendered this appeal moot. The Setiks, in their opposition to the dismissal motion, assert that there are no legal grounds to permit an intervenor "that has never filed any formal claims at the trial division levels" to have any standing to move to dismiss this appeal, or to remove the case from the Pohnpei Supreme Court, and that the FSM Supreme Court did not have subject-matter jurisdiction over the case. The Setiks also assert viable issues remain about the FSM Supreme Court's jurisdiction, the removal process, and the bank's ability to seek a dismissal.
As we have thoroughly explained above, once the bank's intervention was granted, the bank was a party-defendant, with the same capacity as any party to quickly remove the case to the FSM Supreme Court, if the FSM court had jurisdiction (and as we explained above, the court did have jurisdiction), and to move to dismiss the case for the failure to state a claim, if it thought that was a viable defense. Thus, we next consider whether our prior decisions have resolved the dispute between the parties or otherwise made this appeal moot.
C. Whether the Merits of the Case Are Moot
The gist of the Setiks' suit is that the C-Star property was owned by the Estate of Raymond Setik and was tied up in a Chuuk State Supreme Court probate case; that therefore the bank could not have obtained a mortgage on the C-Star property; that it had no right to foreclose on that mortgage; that Perman therefore could not have obtained a good title to C-Star as the winning bidder at the foreclosure auction; and that the Pohnpei Court of Land Tenure was therefore negligent12 in issuing Perman a certificate of title to C-Star based on that sale, and somehow the State of Pohnpei is also liable for its court's negligence.
The bank contends that all these issues were resolved, either directly or by necessary implication, in our earlier appellate decisions. We agree. Both those appellate decisions are final. Petitions for rehearing them have been denied, and the mandates therein have been issued to the trial court.
In both those appellate decisions, we held that the Chuuk State Supreme Court had no jurisdiction over real estate in the jurisdiction of a different sovereign – the State of Pohnpei – so therefore the C-Star property was never tied up in the Raymond Setik probate case in that court; that the Estate of Raymond Setik did not now own the C-Star property and had not owned since it went through a Pohnpei Court of Land Tenure heirship proceeding in 2001; and that all those C-Star heirs had acquiesced in its being mortgaged to the bank.
Since the Setiks' conversion claim (or to be charitable, its inartfully pled quiet title or trespass claim) is based on their allegation that the C-Star property is still owned by the Raymond Setik estate and that it is under a Chuuk state probate court's control, that claim has now been completely resolved by the previous decisions and has become moot. Furthermore, since those decisions also affirmed the order in aid of judgment and the resulting orders setting a foreclosure sale and the order transferring title to the foreclosure sale buyer, Feliciano Perman, all the Setiks' claims against Perman, the foreclosure sale buyer and the current C-Star certificate of title holder, have been resolved in Perman's favor and become moot. That necessarily means that any claim against the Pohnpei Court of Land Tenure or its sovereign – the State of Pohnpei – based on the Court of Land Tenure's issuance of a certificate of title to Feliciano Perman for the C-Star property in obedience to an order transferring title that we had affirmed, has been completely resolved against them and has become moot. Accordingly, all the Setiks' substantive claims are moot. Those claims no longer present a justiciable dispute since the previous appellate decisions have resolved them in their entirety. They are therefore dismissed as moot.
Accordingly, we reject the Setiks' procedural and jurisdictional challenges and affirm the trial court's rulings on those points, and we hereby dismiss as moot the Setiks' appeal of the substantive merits of the trial court's decision.
The usual result when an appeal becomes moot, is for the appellate court to vacate the judgment below and order that the case be dismissed. Nikichiw v. Marsolo, 15 FSM R. 177, 179 (Chk. S. Ct. App. 2007); Wainit v. Weno, 10 FSM R. 601, 611 (Chk. S. Ct. App. 2002). In this instance, however, the case below has already been dismissed. No purpose would be served by vacating that dismissal and then dismissing it again.
_____________________________________Footnotes:
1 Under Appellate Rule 27(a), "[a]ny party may file a response in opposition to a motion . . . within 7 days after service of the motion." The bank served its motion by mail. Since "[w]henever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party and the paper is served by mail, 6 days shall be added to the prescribed period," FSM App. R. 26(c), the Setiks' response was due August 6, 2018 (August 5 was a Sunday). No response was filed and no enlargement was sought. Despite the Setiks' neglectful tardiness, we granted their oral request for a chance to respond. "[T]he court may . . . extend the time for responding to any motion." FSM App. R. 27(a).
2 Court rulings, by their nature, are almost always unfavorable to one or more parties. For a judge to be disqualified for no reason other than the judge had once made an unfavorable ruling against a party, would quickly lead to all judges being disqualified from most court cases.
3 We note that if the Setiks had not been so dilatory in filing their opening brief in this appeal, we would have heard this appeal when we heard the two related appeals. A party's delay cannot, by itself, create a ground for that party to move for judicial disqualification.
4 In Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310 (App. 2017), the appellants, in a petition for rehearing, contended that that appellate panel was improperly constituted unless it contained either the exact same three justices who had sat on an earlier related appeal or three completely new justices. Id. at 314. That contention was rejected as groundless. Id. In the present appeal, this panel has the same members that the two earlier appeals had.
5 The petition included a complete copy of the Pohnpei Supreme Court PCA No. 129-16 file.
6 On August 16, 2016, the Setiks filed a motion in the Pohnpei Supreme Court seeking an entry of default against the defendants. On August 30, 2016, the Pohnpei Supreme Court denied the motion because the case had been removed from that court to the FSM Supreme Court and it no longer had jurisdiction. The Setiks evidently tried this same maneuver a second time, a couple of months later. The result was the same.
7 For pointers on effectively framing issues on appeal see Alik v. Heirs of Alik, 21 FSM R. 606, 615-16 (App. 2018).
8 At oral argument, the bank withdrew its earlier, August 16, 2017, motion to dismiss this appeal based on various procedural grounds.
9 "If . . . it appears that the case was removed improvidently and without jurisdiction, or that the removing party had previously waived its right to remain as determined by the previous decisions of the this Court, the trial division of the Supreme Court shall remand the case . . . ." FSM GCO 1992-2, § III(C).
10 Although we must first look to FSM sources of law, when an FSM court has not previously construed the effect of an FSM General Court Order 1992-2 provision that is identical or similar to a U.S. counterpart, we may consult U.S. sources for guidance in interpreting that provision. Porwek v. American Int'l Co. Micronesia, 8 FSM R. 463, 466 n.1 (Chk. 1998).
11 Since the trial court considered matter outside the pleadings (the FSM Supreme Court decisions in other cases) and did not exclude that matter, the trial court should have considered the Rule 12(b)(6) motion to dismiss to have been converted to a Rule 56 motion for summary judgment. FSM Civ. R. 12(b)(6); Gilmete v. Peckalibe, 20 FSM R. 444, 447 (Pon. 2016); Palasko v. Pohnpei, 20 FSM R. 90, 93 (Pon. 2015); Ehsa v. Pohnpei Port Auth., 14 FSM R. 481, 484 (Pon. 2006); Richmond Wholesale Meat Co. v. George, 11 FSM R. 86, 88 (Kos. 2002); Moses v. M.V. Sea Chase, 10 FSM R. 45, 50 (Chk. 2001); Berman v. Santos, 7 FSM R. 231, 235 (Pon. 1995); Etscheit v. Adams, 6 FSM R. 365, 386 (Pon. 1994).
12 We would look upon a true negligence suit against the Pohnpei Court of Land Tenure with great disfavor. When a defendant is found negligent, the remedy is money damages. See PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 165 (W. Page Keeton et al. eds., 5th ed. 1984) (actual monetary loss or damage must be proven). But the Pohnpei Court of Land Tenure is a court, and, as a court, it is immune from a suit for money damages for its judicial acts. See Helgenberger v. U Municipal Court, 18 FSM R. 274, 283-84 (Pon. 2012); Damarlane v. Pohnpei Supreme Court App. Div., 10 FSM R. 116, 121-22 (Pon. 2001).
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